Thomas v Merthyr Tydfil Car Auction Ltd

Transcript date:

Monday, October 8, 2012

Matter:

Court:

High Court

Judgement type:

Substantive

Judge(s):

Mr Justice Wyn Williams

Transcript file:

Neutral Citation Number: [2012] EWHC 2654 (Admin)

Case No: 0CF90256
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
CARDIFF DISTRICT REGISTRY

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 08/10/2012

Before:

MR JUSTICE WYN WILLIAMS
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Between:

COLIN & SANDRA THOMAS Claimants
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MERTHYR TYDFIL CAR AUCTION LTD Defendant

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Jeremy Hyam (instructed by Richard Buxton Environmental & Public Law) 
for the Claimant
William Upton (instructed by Burges Salmon) for the Defendant

Hearing dates at Cardiff Civil Justice Centre: 23 & 24 July 2012
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Approved Judgment

Mr Justice Wyn Williams:

1. The Claimants own the house and surrounding land known as Rhosbren Fach, Llewellyn Street, Dowlais near Merthyr Tydfil. They acquired the land upon which the house is built in January 1989, built the house in the months that followed and began living in it in August 1989

2. The Defendant operates a business upon land near the Claimants' home. It holds auctions at which many kinds of vehicles are sold. The business began in the late 1970s on an area of land adjoining Pant Road which had formerly been part of a railway cutting. That area of land was some way to the north of the land upon which the Claimants were to build their home. In these proceedings it has been referred to as "the upper yard" or "the top yard".

3. The Defendant's business flourished. It began to consider expansion on to an area of land immediately adjoining the upper yard and to the south thereof. This area of land is referred to as "the lower yard". In about 1995, the Defendant began to carry out part of its business activities on the lower yard. This area of land was close to the land upon which the Claimants had built their home. Almost immediately conflict ensued between the Defendant on the one hand and the Claimants and other residents of the area on the other.

4. These proceedings were issued on 8 June 2010. The proceedings were issued because the Claimants allege that since about 1995 the Defendant has so conducted its activities on the lower yard that a nuisance has subsisted. In the main, the complaint is that the Defendant's activities have been excessively noisy. The Claimants also complain, however, that the Defendant's activities have, from time to time, created harmful fumes.

5. At the time the proceedings were issued the Claimants' aim was to obtain an injunction to restrain those activities which constituted a nuisance. However, the Claimants maintain that shortly after the commencement of proceedings the Defendant modified its practices so that the nuisance abated. Since about January 2011 the claim has proceeded on the basis that the Claimants are entitled to damages for the nuisance which they allege they have endured in the 6 year period preceding 8 June 2010.

6. The Defendant denies that its activities in that period constituted a nuisance. The Defendant maintains that during the period in question it operated its business lawfully and strictly in accordance with a planning permission which it was granted in February 1997 and that none of its activities caused excessive noise or gave off harmful fumes. The Defendant's stance is that the Claimants are unduly sensitive to noise and completely intolerant of its lawful activities.

The Defendant's business in more detail

7. Since its inception, the Defendant's activities have been controlled by a small number of people. Mr Alan Davies is one of two directors; the other director is Ms Pat Weaver who is also the Defendant's secretary. During the course of the evidence, Mr Davies' son, namely Mr Dean Davies, was also identified as important to the Defendant's activities.

8. In essence, the Defendant arranges and facilitates the sale of second-hand vehicles at auction. The auctions take place in a specially constructed auction hall in the upper yard. Cars, light and heavy commercial vehicles, plant and occasionally motor cycles are sold during the course of auction. The majority of the vehicles sold belong to fleet or larger business users. The Defendant's clients include public bodies such as local authorities, NHS Trusts and Fire Brigades as well as many private companies. In his evidence Mr Davies said that many buyers come from as far afield as Pakistan, Nigeria, Jamaica and Egypt to purchase vehicles at auctions held by the Defendant.

9. The site which is currently occupied by the Defendant is a former railway cutting. Initially, in the late 1970s, the Defendant operated its business from the upper yard. By 1983, it had exclusive occupation of the whole of the site from which it now operates. It was only in about 1995, however, that the Defendant began to use the lower yard in conjunction with the activities being carried on at the upper yard.

10. The Defendant's activities upon the lower yard are controlled by the terms of a planning permission which was granted to the Defendant on 21 February 1997. The permission was granted by an Inspector who had been appointed by the Welsh Office to conduct and determine an appeal which the Defendant had initiated against an enforcement notice served by the local authority. The planning permission granted by the Inspector was in the following terms:-

"I hereby grant planning permission.....for the development already carried out, namely the use of the land shown edged and hatched in black on the plan annexed to this letter and the building shown on that plan for the storage, parking and valeting of vehicles associated with the adjacent car auction premises."

The planning permission was granted subject to a number of conditions one of which was:-

"(e) No activity shall take place on the site before 0800 hours or after 1830 hours on weekdays and Saturdays, nor at any time on Sundays or public holidays, the sole exception to this condition being in the event of a transporter arriving whilst the auction activities are being undertaken in the upper yard, such transporter shall be permitted to enter the lower yard for the purpose of parking only."

11. Mr. Davies made his first witness statement in these proceedings on 16 December 2010. In it, Mr Davies gave a description of the activities then being undertaken on the Defendant's premises. In his oral evidence, Mr. Davies told me that there has been no change of substance since December 2010. Accordingly, the following description of the Defendant's activities is taken from Mr. Davies' first witness statement as though it relates to the present time.

12. In summary, all auctions take place in the upper yard. Auctions for light vehicles are held on Mondays and Wednesdays at 7pm and on Saturdays at 2pm. Auctions for heavy vehicles take place at 6pm on Mondays. Auctions in relation to plant and machinery are not as regular. However, when necessary, they take place at 2pm on Mondays.

13. The lower yard is used, primarily, for two purposes. First, valeting of cars and light commercial vehicles takes place in the two valeting bays which are located in the northern part of the lower yard. Mr Davies estimates that approximately 6 vehicles are valeted each day. The second purpose for which the lower yard is used is as an overflow storage area for all kinds of vehicles when the storage area in the upper yard is full. Mr Davies says that vehicles are stored in the lower yard until space becomes available to bring them into the upper yard.

14. Mr Davies asserts that the Defendant adheres, strictly, to the planning permission which limits activity on the lower yard to the period 8.00am to 6.30pm Monday to Saturday. He asserts, too, that the activities carried on by the Defendant on the lower yard produces no more noise than is to be expected and certainly no more than is reasonable. He denies that the Defendant's activities have ever produced harmful fumes.

The Claimants' complaints

15. The First Claimant is either 63 or 64 years old. In 1966 he suffered a very serious mining accident which has left him with a number of disabilities. The Second Claimant is also aged 63 or 64. She has spent a good deal of time providing care to her husband. As of December 2010 when they made their first witness statements they lived at their home with two of their adult children, Dewi and Carwyn.

16. The First Claimant asserts that since about 1995 he and his family have experienced noise and fumes from the use of the lower yard. He says that the noise and fumes subsisted at such a level so as to amount to an actionable nuisance from 1995 until shortly after these proceedings were commenced. Noise emanating from the lower yard, amounting to an actionable nuisance was caused by prolonged revving of engines, by frequent use of high pitched reversing bleepers, the continued idling of vehicle engines and high impact bangs and crashes.

17. The Claimants have kept written notes of events within the lower yard since about 1995/1996. Until 2005 the Second Claimant made notes and recorded events on a video camera. From 2008 the First Claimant made written records. The written records were made in diaries and also on "pro-forma" sheets which were provided to the Claimants by their solicitors. The diary entries and sheets are exhibited to the first witness statement of the First Claimant. They run to 518 pages. They begin in July 1996 and end in December 2010.

18. The First Claimant says that the records do not evidence the totality of the problems which the Claimants have suffered. In particular, in 2005, 2006 and 2007 no records were kept even though there were recurring problems with noise and fumes. The Claimants explain this by saying that it was during this period that they attempted to sell their home and they were advised not to keep records so as not to inhibit the likelihood of a sale. However, they stress that the problems about which they complain were similar in those years to those for which records exist.

19. I have read all the records for myself. As I indicated at the close of the evidence I accept that the records are an honest attempt by the Claimants to describe the problems which they have suffered (as they see it) from the activities of the Defendant.

20. A glance at the records demonstrates that the complaints contained therein are not confined to alleged excessive noise or fumes. Other aspects of the Defendant's activities are also noted - particularly activities or events which the Claimants' allege constitute a breach of planning control.

21. The First Claimant's witness statement contains extracts from the records kept by his wife and himself (see paragraphs 23 to 40). The extracts refer to events spanning the period 1996 to 2010. I do not propose to repeat those extracts verbatim in this judgement; to repeat I regard all the records as an honest attempt by the Claimants to describe what they were suffering as a consequence of the Defendant's activities.

22. Given the way in which the claim has unfolded, however, it is important to focus in some detail upon the records which exist for the years 2008 and onwards. At paragraph 36 of his first witness statement the First Claimant provides a table in which he sets out the number of days in each month between February and December 2008 when he and his family experienced vehicle noise. The least number of days in any one month was in December - there were 5 days in that month; the most days in any month were in May - there were 17 days. The Defendant does not suggest that this table is an inaccurate summary of the records for each month. In March, April, May, July, September, October and November the number of days in which excessive noise was recorded exceeded 10 in each month. Let me set out some of the more striking examples of alleged nuisance through noise which occurred in May. The entry for 6 May reads as follows:-

"Unbearable from 11.15am banging continuous revving, reversing sound piercing through home 11.30 - → 12.35pm phoned E/H dept MTCBC spoke to Fiona I explained that the noise was worse than an open cast site. She said she would inform the dept. Noise stops 12.45pm approximately.

2.45pm starts again no contact from E/H MTCBC."

The entry for 9 May 2008 reads "Loud, vehicles being moved revving" which noise lasted for approximately 15 minutes. The entry for 13 May 2008 describes both alleged illegal activity and noise nuisance. The record shows that the noise began at about 10.45am and continued until 11.30am, began again at 12 noon and more noise was experienced at 1354. The noise at 12 noon was described as "horrendous on times". The entry in relation to 1354 described vehicles "being revved at maximum". Entries for 19 May and 21 May describe very substantial noise continuing for reasonably substantial periods of time.

23. As I have said there were 5 entries, only, for December 2008. They do not compare with any of the entries for May. However, there are at least 2 entries where odours are described as a consequence of movements of heavy goods vehicles in the lower yard.

24. The number of days during which an alleged noise nuisance was recorded for 2008 was 124. In 2009 the number days was 56 and in 2010 (to November of that year) it was 74.

25. Mr Hyam has produced two annexes to his written closing submissions. Annex 1 is a summary of the diary entries for the year 2004 and for the period 2009 to June 2012. Annex 2 is the detail which supports Annex 1. In 2004 there were 38 instances of alleged noise nuisance by virtue of the noise of heavy goods vehicles. In 2009 106 such instances were recorded. In 2010 the number was 121. On some days there was more than one instance of alleged noise nuisance.

26. The Claimants' written records contain many fewer recorded instances of alleged nuisance on account of fumes from heavy goods vehicles. In 2004 there were no recorded instances; in 2009 there were 12 such instances and in 2010 there were 6. (Mr. Hyam's Annex 1 suggests that there were 24 instances in 2009 but the figure of 12 for March 2009 is inaccurate. In March there were 2 recorded instances.)

27. It is common ground that there came a point in time when the Defendant engaged an organisation known as Elite Security to ensure the security of its premises at night. It is also common ground that Elite Security used dogs to patrol the Defendant's site during the hours of darkness.

28. The Defendant has disclosed logs apparently completed by employees of Elite Security for a number of months in 2010 which purport to show that during this period the dogs were properly controlled by handlers although it is also to be noted that no person from Elite Security provided a witness statement to explain the system which was used to control the dogs during the night patrol.

29. The Claimants assert that during 2009 and 2010 the dogs were often unsupervised; they were left to roam the site at night and on a number of occasions the Claimants and their family were woken by the sound of the dogs barking.

30. The Claimants have produced records for 2009 and 2010 which describe dogs barking in the night. According to Mr Hyam's Appendix 1 there were 67 recorded instances in 2009 and 146 in 2010. Both the Claimants and one of their two sons, Dewi, gave evidence about this aspect of the case. Each of them was cross-examined closely about how they could tell that it was dogs patrolling the Defendant's site which were barking in the night. The suggestion put to the Claimants and their son was that there were a number of dogs in the vicinity and it could have been any one of the dogs which was barking in the night. 
31. I am satisfied that on many, if not all, of the occasions when the Claimants were woken or disturbed by dogs barking in the night it was the dogs which were patrolling the Defendant's premises which were responsible. I accept the evidence of the Claimants and their son Dewi that it was possible to differentiate between the bark of different dogs and that they were able to identify both by sound and by direction that it was dogs from the Defendant's premises which were disturbing them.

32. It was not suggested to the Claimants in cross-examination or to their son Dewi that they had made up the allegation that they were disturbed by dogs barking at night. The thrust of the Defendant's case on this issue is that it was not possible to say that it was dogs from its premises which caused disturbance to the Claimants and their son. As is clear I do not accept that this is so.

33. As I have said already the Claimants assert that as from late 2010 they have experienced less noise from vehicles in the lower yard. They also say that since that time dog handlers on the Defendant's site have kept the dogs under control so that they have not been disturbed by dogs barking in the night. The Claimants say that vehicular noise has been minimised because the Defendant uses the lower yard far less frequently for parking heavy goods vehicles. These assertions are supported by the records kept by the Claimants. In 2010 there were 121 recorded instances of alleged noise nuisance on account of heavy goods vehicles; however, during October, November and December the numbers respectively were 8, 13 and 1. In that year the total number of recorded instances of nuisance through dog barking was 146; in the last three months the numbers were 9, 0 and 0. In 2011 and 2012 there were no recorded instances of dogs barking; in those years the recorded instances of noise from heavy goods vehicles were 47 and 18 respectively.

34. As I have said on more than one occasion I accept that the records made by the Claimants are an honest account of what they were experiencing. I also accept that they do not deliberately exaggerate the extent of the perceived nuisance. In my judgment if the Claimants were intent upon deliberate exaggeration it would make no sense that that the number of days in which noise nuisance allegedly occurred in 2008 were greater in number by some margin than those recorded for 2009 and 2010. I regard the records made by the Claimants as an accurate account of what they experienced.

35. It is to be observed, of course, that many of the records show that the alleged noise nuisance subsisted over a comparatively short time during a particular day. That may have significance in relation to whether or not the noise during that day can be regarded as an actionable nuisance; the fact that the noise is reported as subsisting for a short period on many separate occasions, however, adds further support to my conclusion that the Claimants were not intent upon exaggeration when they compiled their written records.

Documentation supplied by the local authority

36. Mr Davies has exhibited to his first witness statement records which were made by the local authority about complaints which it received about noise emanating from the Defendant's premises (see Trial Bundle 2 pages 1062 to 1078). There are also relevant local authority documents at Trial Bundle 5 pages 3301 to 3405. The point is made on behalf of the Defendant that despite those complaints spanning many years and, in particular, spanning the years 2004 to 2010 the local authority never concluded that a statutory nuisance was emanating from the Defendant's premises on account of noise. Over the years, visits were made to the Defendant's premises or the vicinity thereof by officers of the local authority but there was no occasion, according to the documents supplied by the local authority, when it was concluded that a noise nuisance existed.

37. The Claimants' answer to this point is that officers of the local authority were not as vigilant as they should have been in monitoring the Defendant's premises. In the nature of things, said the Claimants, visits by local authority officers were very infrequent and lasted for no more than a comparatively short time and it is not surprising that those visits did not coincide with a nuisance emanating from the Defendant's premises.

38. Shortly after these proceedings were issued Mr Davies contacted his ward Councillor. That led to an exchange of emails between the Councillor (Robert Griffin) and Mr Llewellyn Patrick, an environmental health officer employed by the local authority. In an email dated 30 June 2010 and timed at 16.32 Mr Patrick wrote:-

"I have carefully studied my predecessors' case reports for all of the complaints received over the last 12 years and can advise you that although a number of visits have been made to the premises and the surrounding area the assessments made have all been subjective. This is the normal approach to nuisance investigations with objective noise measurement and monitoring being used only where it is necessary to quantify the level of the intrusive noise. In this case, where the noise has been witnessed it has been negligible and the assessing officers have concluded that monitoring devices would not produce evidence of a nuisance.

The only exception to this arose in February 2010 when information had been received suggesting that the noise was loud but intermittent and of short duration. By this time the Council had acquired an advanced noise monitoring and recording device capable of dealing with short-duration incidents and this was therefore installed. Unfortunately, the complainant reported when the device was being collected that the noise had been unrepresentative of the activity complained of and not a nuisance. It was therefore inappropriate to analyse the data obtained.

"From my own personal observations of this site whilst investigating barking dogs, vehicle noise and vehicle fume complaints both during the day and at nights since January 2008 I am able to confirm that activity levels are very low and compared with the other motor auctions and similar activities I have investigated. The fume and noise originating at the site have been correspondingly low.

I regret I can be no more specific on the noise levels present there but trust this additional information is of some assistance to you."

39. Not surprisingly, the Defendant relies heavily upon the documentary evidence obtained from the local authority. One of my difficulties, of course, is that none of the evidence has been challenged by cross-examination and, to repeat, the Claimant's evidence is that officers of the local authority were less than vigilant when investigating justified complaints. All that said it seems to me that the documentary evidence generated by the local authority is bound to assist the Defendant's case. There is no real suggestion that the local authority's officers were partial; if there is an implicit suggestion to that effect in the evidence of the First Claimant, in particular, there is no sound basis upon which I could reach such a conclusion.

The Defendant's daily work sheets April 2011 to June 2012

40. The Defendant has disclosed daily work sheets for the period April 2011 to June 2012. The work sheets are in a standard form and they begin with a section headed "Health and Safety Notice". The sheets in being in April 2011 had three bullet points under that heading and the last of the bullet points read:-

• "Bottom yard is out of bounds after 6.30pm"

Another section of the standard daily work sheet had a heading "To Do". The work sheet for Monday 20 June 2011 had the words "No one to rev vehicles" written next to the words "To do". Perhaps more importantly, as from November 16 2011 the daily work sheets were changed so that there were 5 bullet points under the heading "Health and Safety Notice". The added bullet points were:-

• "Don't jump start VW crafter/Merc sprinters

• Nobody to rev vehicles."

41. Mr Davies was cross-examined about why the instruction "nobody to rev vehicles" had been introduced. He said that he had no idea. I find that surprising, to say the least. By the time that the instruction was introduced these proceedings were in being and one of the Claimants' primary allegations was that excessive noise was being generated in the lower yard because vehicles were being revved.

42. It is, of course, possible that the instruction was introduced as a precautionary measure. If that was so, however, I would have expected Mr Davies give that explanation in evidence. In the absence of evidence to that effect it seems to me that the most likely explanation for the existence of this instruction is that there had been instances of vehicles being revved in the past and the Defendant was seeking to ensure that there were no further instances or least that further instances were minimised. I am also satisfied on balance of probability that Mr. Davies knew that to be the case.

43. This documentation provides support for the Claimants' case in two respects. First it supports their claim that vehicles in the lower yard have, from time to time, been revved unnecessarily; second it supports their claim that after the commencement of these proceedings the Defendant sought to ensure that noise from its activities was minimised.

The evidence of Mr Davies and other lay witnesses

44. I was not impressed by Mr Davies as a witness. He was clearly very hostile to the Claimants and their family and he was unwilling to countenance the suggestion that the Defendant's activities disturbed the Claimants' enjoyment of their home at all. His hostility was well demonstrated by the fact that he had made at least one allegation of perjury against either the First or Second Defendant on account of evidence given at a planning appeal. (Mr. Davies seemed to suggest in evidence that his complaint was against the First Defendant but on any view it was the Second Defendant who was interviewed by the police). He was evasive about the extent to which the Defendant breached planning controls over the years even though, self-evidently the documents supplied by the local planning authority demonstrated beyond doubt that breaches had occurred; he did not explain the instruction issued in 2011 to the Defendant's employees (see paragraph 42 above). While I accept that he described the nature of the Defendant's business accurately in general terms I do not consider that his evidence about the allegations of nuisance was reliable.

45. A number of persons who lived in the locality were called to give oral evidence. They were Mrs Beverley Davies, on behalf of the Claimant; Mr Shaun Mahoney and Mr David Hughes on behalf of the Defendant. In addition each party relied upon written witness statements from other residents of the area.

46. Mrs Davies lives near the Claimants. In the period 2004 to June 2010 she was in full time employment. She was away from her home during normal working hours during the day. However, she usually arrived home between about 5.30 and 7.00pm. Mrs Davies told me that she often heard noise emanating from the lower yard as a consequence of the revving of engines. She also told me that it was not uncommon for this to occur after 6.30pm.

47. Mrs Davies also told me that she has seen what she described as a "spiral of fumes" coming from the lower yard.

48. Mr Upton submits that there was confusion in Mrs Davies's evidence as to the periods of time to which her evidence relates. He points out, too, that Mrs Davies's assertions about noise after 6.30pm is not supported, at least in the main, by the written records made by the Claimants.

49. I accept that Mrs Davies's evidence was not precise. I accept, too, that her assertions that the revving of engines took place, frequently, after 6.30pm is not supported by the Claimants' written records. All that said Mrs Davies impressed me as trying her best to be both accurate and objective.

50. Mr Mahoney and Mr Hughes also live in close proximity to the lower yard. Like Mrs Davies they worked during normal working hours during the period under scrutiny. They told me that they were unaware of any noise nuisance (or for that matter nuisance from fumes) emanating from the lower yard.

51. In cross-examination Mr Hyam sought to impugn the evidence of Mr Mahoney as being motivated by a close connection with the Defendant. I am not persuaded that his evidence was so motivated but I should also say that Mr Mahoney did not strike me as a man much concerned about noise from his surroundings.

52. Mr Hughes bought his home in 2007. It is at least possible that the price he paid for the house reflected the possibility that noise was a problem in the vicinity. In any event, Mr Hughes could not have failed to be aware of the Defendant and its activities and I have no doubt that he purchased in the belief that he was unlikely to be troubled from the noise which came from the Defendant's premises.

53. At first blush it is difficult to reconcile the evidence given by Mrs Davies on the one hand and Messrs Mahoney and Hughes on the other. The most likely explanation for their differing accounts is that each has quite different tolerance to noise. Having reflected upon it with care, I am satisfied that Mrs Davies' complaints of excessive noise, at least in general terms are accurate and sufficiently reliable to provide support for the Claimants' case.

54. I attach little weight to the statements of other residents. They were untested by cross-examination.

Expert evidence

55. The Claimants' rely upon a noise impact assessment report in respect of the Defendant's premises prepared by Mr Jones of Messers Hilson Moran. The report is dated 21 January 2011. The report relies upon unmanned environmental noise surveys carried out between approximately 7.20am on 11 February 2010 and 4.15pm on 17 February 2010 and between approximately 11am on 22 February 2010 and 1am on 3 March 2010. Mr Jones also had access to an earlier noise survey undertaken by a firm known as MAS Environmental between 10 August 2009 and 21 August 2009. The report obtained on behalf of the Claimants supports the claim that a noise nuisance was emanating from the lower yard until the Defendant altered aspects of its operation.

56. The Defendant has disclosed its own expert report; I have before me a report dated 25 January 2011 compiled by Mr Paul Trew of Acoustics and Noise Ltd. Mr Trew's conclusion is that no nuisance has ever emanated from the Defendant's premises.

57. Mr Jones and Mr Trew have prepared a joint statement. There are many more points of fundamental disagreement than there are points of agreement contained within the joint statement.

58. During the course of these proceedings the parties agreed that neither expert would be called to give oral evidence. That agreement was sanctioned in case management directions made by HH Judge Seys Llewellyn QC. While that decision has had the beneficial effect of reducing the costs and length of the proceedings it has also made it virtually impossible to assess the merits of the respective opinions of the experts. I have considered their reports with care together with Counsel's closing submissions upon them. As I see it, however, there is nothing inherently improbable or so obviously wrong about the opinions expressed by Mr Jones and Mr Trew that I can reach a conclusion upon which of their opinions should be preferred simply from a reading of the reports. Accordingly, the views which I have formed upon the critical issues in this case are ones which are uninfluenced by the expert evidence.

The law

59. The relevant legal principles are set out in two decisions of the Court of Appeal of recent origin. In Barr v Biffa Waste Services Ltd [2012] 3 AER 380 Carnwath LJ (as he then was) formulated the following principles relevant to allegations of nuisance of the type under consideration in this case.

"[36] In my view this case is governed by conventional principles of the law of nuisance, which are well-settled, and can be found in any of the leading text books. Thus, Clerk & Lindsell on Torts (20th edn, 2010) Ch20, the third category of nuisance is that caused by a person ‘unduly interfering with his neighbour in the comfortable and convenient enjoyment of land'. ......Relevant to this case are the following rules. (i) There is no absolute standard; it is a question of degree whether the interference is sufficiently serious to constitute a nuisance. That is to be decided by reference to all the circumstances of the case..... (ii) There must be a real interference with the comfort or convenience of living, according to the standards of the average man...., or in the familiar words of Knight Bruce VC: ‘not merely according to elegant or dainty modes and habits of living, but according to plain and sober and simple notions among the English people.' (See Walter v Self [1851] 4 DeG & Sm 315 at 322, [1851] 64 ER 849 at 852). (iii) The character of the neighbourhood area must be taken into account. Again in familiar nineteenth century language, ‘what would be a nuisance in Belgrave Square would not necessarily be so in Bermondsey'. (.... Thesiger LJ, Sturges v Bridgman [1879] 11 ChD 852 at 856). (iv) The duration of an interference is an element in assessing its actionability, but it is not a decisive factor; a temporary interference which is substantial will be an actionable nuisance.... (v) Statutory authority may be a defence to an action in nuisance, but only if statutory authority to commit a nuisance is expressed or necessarily implied. The latter will apply where a statutory authority authorises the user of land in a way which will ‘inevitably' involve a nuisance, even if every reasonable precaution is taken.....(vi) The public utility of the activity in question is not a defence....."

Arden and Patten LJJ agreed with the judgment of Carnwath LJ. Leave to appeal to the Supreme Court has been refused.

60. The decision in Barr does not address, expressly, an issue which arises in this case namely the relevance, if any, of the fact that the Defendant's activities are governed by a conditional planning permission granted by the local planning authority. This issue was considered in detail in Lawrence and another v Fen Tigers Ltd & Others [2012] 3 AER 169. During the course of his judgment, Jackson LJ, with whom Mummery and Lewison LJJ agreed, summarised the relevant principles as follows:-

"[65] In the light of the authorities cited above, I would summarise the law which is relevant to the first ground of appeal in four propositions. (i) A planning authority by the grant of planning permission cannot authorise the commission of a nuisance. (ii) Nevertheless the grant of planning permission followed by the implementation of such permission may change the character of the locality. (iii) It is a question of fact in every case whether the grant of planning permission followed by steps to implement such permission do have the effect of changing the character of the locality. (iv) If the character of a locality is changed as a consequence of planning permission having been granted and implemented then: (a) the question whether particular activities in that locality constitute a nuisance must be decided against the background of its changed character; (b) one consequence may be that otherwise offensive activities in the locality cease to constitute a nuisance."

61. The claim in Lawrence concerned alleged noise nuisance emanating from a motor sports track situated 560 metres from the Claimants home. The Claimants' claim succeeded at first instance but the Defendant's appeal to the Court of Appeal succeeded. Mr Upton (who appeared for the Claimants in Lawrence) points out that permission to appeal to the Supreme Court against the decision of the Court of Appeal has been granted. He invites me, accordingly, to prefer the approach taken in earlier cases to the relevance of planning permission and not to attach "too much weight" to this summary of the principles by the Court of Appeal. With respect to Mr. Upton, I do not believe that approach is permissible. The Court in Lawrence considered all the relevant authorities; it is a decision which binds me. The fact that an appeal is pending does not alter its status so far as I am concerned. I am bound to apply the principles elucidated in Lawrence.

Discussion

62. My task is to adjudicate upon whether the Claimants have proved that the Defendant has unduly interfered with the Claimants' "comfortable and convenient enjoyment of their land" on account of noise generated in the Defendant's premises and fumes emitted therefrom. It is a question of degree whether the interference, if proved, is sufficiently serious to constitute a nuisance. That is to be determined by reference to all the relevant circumstances of the case. In the context of this case important factors to be taken into account are the nature of the locality and the duration of the alleged interference.

63. It is also to be noted that the Defendant cannot rely upon the grant of planning permission in 1997 and the implementation of that permission as legal authorisation for activities which amount to a nuisance. The planning permission may authorise the carrying out of the activities specified; it does not authorise the carrying out of the activities in such a manner so as to constitute a nuisance. That said it is obviously necessary to consider whether the grant of planning permission followed by its implementation has had the effect of changing the character of the locality.

64. With that introduction I turn to consider the important factual issues in this case.

The locality in 1997 and in the period 2004 to 2010

65. There is no better description of the locality as it was in 1997 when planning permission was granted than that which is contained within the Inspector's decision letter of 21 February 1997: see in particular paragraphs 5 to 11 of Trial Bundle 2 pages 352 and 353.

66. As is clear from that description and plans from that time, there were substantial numbers of houses in close proximity to the Defendant's premises. Most of those houses were terraced were and contained within streets of a type very often found in the South Wales Valleys although a small minority of the houses were contained within their own grounds.

67. As well as houses there were a number of small businesses in the locality. They were businesses such as small shops, cafes and a public house.

68. The northern most part of the Defendant's premises had been used for business purposes for many years before the mid-90s. It was in close proximity to a substantial highway with significant traffic flows, at least in local terms (the A465 Heads of the Valley Road). The lower yard was in reasonably close proximity to the A465 and also another busy road in local terms, namely Pant Road.

69. In my judgment, the locality within which the Claimants' residence and the Defendant's business were contained in 1997 was mainly residential. However, as was typical of residential areas in this part of South Wales at that time there were business uses and busy roads nearby. The traffic upon the roads, in particular, would generate noise which could be heard by a number of the residents of the locality. That said I accept the evidence of the Claimants and Mrs Davies that noise from the A465 did not intrude upon their enjoyment of their homes.

70. The grant of planning permission in 1997 and the Defendant's implementation of that permission did not alter the character of the locality. The rationale of the Inspector's decision in 1997 was that the activities undertaken upon the lower yard (for which planning permission was sought) were compatible with the nature and character of the locality in which the yard was situated. Essentially, the character of the locality is the same now as it was in 1997.

Noise

71. Residents of this part of Dowlais cannot and should not expect a noise-free environment. Traffic noise, to some extent, is inevitable. A degree of noise from the upper and lower yard is also inevitable given the authorised uses upon those areas not just during the Defendant's tenure but previously.

72. I have considered with care whether the Defendant is correct when it asserts that the noise which vehicles generate on its site never exceed that which is reasonable given the nature of its business and the locality in which it operates. In particular I have considered whether the Defendant is correct in his assertion that the Claimants simply cannot tolerate any degree of interference with their residential amenities.

73. I accept that there is a possibility that the First Claimant, in particular, is unnecessarily intolerant to the Defendant's activities. It is possible, too, that this intolerance has been fuelled by his state of health and by the attitude of his wife. However, as I have said, I regard the records made by both Claimants as both honest and free from deliberate exaggeration. That being the case I am not prepared to conclude that the Claimants are simply intolerant of any interference with their amenity.

74. I was impressed by the evidence of the Claimants' sons. I do not regard it as likely that the Claimants' sons attended court and gave oral evidence simply out of loyalty to their parents or animosity towards the Defendant and Mr Davies in particular. The evidence which they gave about unacceptable noise was, in my judgment, largely accurate.

75. I acknowledge, of course, that there are no written records for the years 2005 to 2007. However, given that records exist for the preceding and subsequent years I am prepared to accept the Claimants' explanation as to why records do not exist for those three years. The probability is that had records been kept they would have shown a similar pattern of noise generated by a heavy goods vehicle as that which is demonstrated by the records for the years 2008 to 2010.

76. It follows that I am prepared to accept that during the six year period preceding the commencement of these proceedings the Claimants have been subjected to noise through revving of engines, use of high-pitched reversing bleepers, the continued idling of vehicle engines and high-impact bangs and crashes emanating from the lower yard. The extent and duration of noise from those sources was as set out in the written records.

77. I have grave reservations about whether the noise from the use of reversing beepers could constitute a nuisance. Vehicles moving within the lower yard, necessarily, would have to reverse from time to time. Reversing bleepers are a significant safety feature. They are engaged only when a vehicle is reversing and it is difficult to see how reversing vehicles from time to time even though noise would be generated thereby from the bleepers, could constitute an unreasonable use of the lower yard in the context of this case. However, it is neither necessary nor appropriate to treat this aspect discretely given that there are many complaints of vehicle noise which are not associated with noise from bleepers.

78. I accept that the noise from vehicles about which the Claimants complain does not subsist continuously. Indeed, it is difficult to see how it could. The records demonstrate that there are many more days in any given year when no alleged nuisance on account of noise occurs. Further the records show that even when noise nuisance is recorded there are a significant number of occasions when the noise subsists for a comparatively short period of time. Obviously those are factors which militate against a finding of actionable nuisance.

79. However, I am satisfied that noise from the lower yard has occurred with a frequency and to an extent which does amount to a nuisance. Despite the lack of records for the period 2005 to 2007 I am satisfied that this was the state of affairs during those years as well as doing the period from 2008 to the commencement of proceedings for which records exist.

80. I make that finding notwithstanding the records from the local authority to which I have referred in paragraphs 36 to 39 above. I am satisfied that the nature and extent of the investigation undertaken by the local authority as disclosed by those records was not such that it can displace the conclusions I have reached about nuisance based upon the Claimants' own records and the evidence which I have identified as supporting that evidence.

81. The noise nuisance generated from the Defendant's premises was worse in 2009 and 2010 on account of dogs barking during the night. As I have said I am satisfied that the Claimants have proved that on many if not all of the occasions when dog barking has been recorded the barking came from the Defendant's premises. I am satisfied too that on many occasions the barking woke the Claimants or disturbed their sleep.

Fumes

82. I am not satisfied that fumes from the Defendant's premises unduly interfered with the Claimants' enjoyment of their home. The number of recorded entries in relation to fumes is very low. There were 10 in 2009 and 6 in 2010. The vast majority of the recorded instances of nuisance in 2008 relate to noise and, of course, no records exist for the three years before that.

83. I accept that there were occasions when fumes were emitted from the Defendant's premises but, in my judgment, such emissions were so infrequent and for such a short duration that they did not amount an actionable nuisance. There is no reliable evidence that any emission of fumes had any deleterious effect upon the health of either Claimant. No medical evidence was adduced before me.

84. If I am wrong to hold that such fumes as emanated from the Defendants' premises did not constitute a nuisance such was the infrequency of exposure to fumes that the damages which I propose to award for nuisance would not have increased to any material extent.

Quantum

85. The Claimants are entitled to damages to compensate them for the noise nuisance which emanated, from time to time, from the lower yard. In my judgment the period of approximately 18 months leading to the commencement of these proceedings was the period when the nuisance was most intrusive given that it was in this period that the Claimants were disturbed at night by barking. In the 4½ years before January 2009 the Claimants were subjected to noise associated with vehicles; at worst such noise might subsist for periods of an hour or so and might occur more than once on a given day. There would be other occasions when the nuisance would be much shorted in duration. As I have said there would be many days when there would be no nuisance.

86. Mr Upton has not addressed the issue of quantum in any detail in his closing submissions. Indeed he has suggested that quantum should be addressed, separately, in the event of a finding of liability although he does submit that the suggestions made on behalf of the Claimants as to an appropriate level of compensation are too high.

87. I am not prepared to add to the costs by convening a hearing to deal with quantum. On any view the sums which are claimed are modest and are dwarfed by the legal costs which have been generated.

88. In the light of my analysis of the nature of the noise nuisance and given that I am not satisfied that a nuisance occasioned by fumes has existed an appropriate award of general damages to compensate for the nuisance endured in the 6 year period ending with the issue of these proceedings is £9000.

The current position

89. As I have said the Claimants accept that no nuisance has existed since shortly after the commencement of these proceedings. They accept that to be the case notwithstanding that they have recorded individual instances of noise emanating from the Defendant's premises. It must follow that this amounts to an acknowledgement by the Claimants that the noise which has emanated from the Defendant's premises over the last two years or thereabouts has to be tolerated, if not welcomed. I make that point since it seems to me that provided the Defendant continues its current practices within the lower yard it can be assured that it is committing no tort.

90. I propose to hand down this judgment at a convenient time on Monday 8 October. If the parties agree upon an appropriate order consequent upon this judgment there need be no attendance. If, however, there is to be a dispute about consequential matters I will convene a hearing in London which, to repeat, will take account of the availability of Counsel.